Citation Nr: 1038387
Decision Date: 10/13/10 Archive Date: 10/22/10
DOCKET NO. 08-29 734 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for diabetes.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hypertension including secondary to diabetes.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
adjustment disorder with depression and panic attacks.
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from August 1982 to January
1985. The Veteran also had three years of earlier active duty
service.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from a March 2008 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
In March 2010, the Veteran notified the Board that she was
withdrawing her Power of Attorney (POA) in favor of The American
Legion. See 38 C.F.R. § 20.608 (2009).
Initially, the Board notes that while the Veteran's May 2008
notice of disagreement as to the March 2008 rating decision also
included the RO's denial of her application to reopen her claim
of service connection for bilateral hearing loss. However, the
Board finds that this issue is not in appellate status because
the Veteran's September 2008 VA Form 9, Appeal to Board of
Veterans' Appeals, specifically limited her appeal to the
application to reopen her claims of service connection for
diabetes, hypertension including secondary to diabetes, and an
adjustment disorder with depression and panic attacks. See
38 C.F.R. § 20.204(b) (2009) (a substantive appeal may be
withdrawn at any time before the Board promulgates a decision);
Hamilton v. Brown, 4 Vet. App. 528 (1993) ("where ... the
claimant expressly indicates an intent that adjudication of
certain specific claims not proceed at a certain point in time,
neither the RO nor BVA has authority to adjudicate those specific
claims, absent a subsequent request or authorization from the
claimant or his or her representative").
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
In April 2010, the Veteran failed to report to a video hearing
she had scheduled before the undersigned. In March 2010, the
Veteran asked the Board, in substance, to allow her to have a new
hearing before a Veterans' Law Judge at the RO because she was
revoking her POA in favor of The American Legion and obtaining
new representation. In August 2010, the Board found that Veteran
had shown good cause for not showing for her earlier hearing and
that she should be re-scheduled for the new hearing she had
requested. See 38 C.F.R. § 20.704 (2009). Therefore, a remand
to schedule the Veteran for such a hearing is required. See
38 C.F.R. §§ 20.703, 20.704(c), (d) (2009).
In this regard, while in March 2010 the Veteran notified the
Board that she was retaining new representation, a review of the
record on appeal fails to disclose a new VA Form 21-22,
Appointment of Veterans Service Organization as Claimant's
Representative, in favor of that new representative. Therefore,
while the appeal is in remand status, a fully executed VA Form
21-22 identifying this representative should be obtained and
associated with the claims files.
While the appeal is in remand status, the Board finds that the
Veteran should also be provided with adequate 38 U.S.C.A.
§ 5103(a) (West 2002) notice in accordance with the United States
Court of Appeals for Veterans Claims (Court) holding in Kent v.
Nicholson, 20 Vet. App. 1 (2006), because such notice has not as
yet been provided the claimant because the Veterans Claims
Assistance Act of 2000 (VCAA) notice letters found in the claims
files do not give her adequate notice of the reasons for the
prior final denial of the claims.
Accordingly, the appeal is REMANDED to the RO for the following
actions:
1. The RO should contact the Veteran and
obtain and associate with the record a
fully executed VA Form 21-22, Appointment
of Veterans Service Organization as
Claimant's Representative, in favor of her
new representative.
2. The RO should provide the Veteran with
updated VCAA notice in accordance with the
Court's holdings in Kent, supra, and
Dingess v. Nicholson, 19 Vet. App. 473
(2006); 38 U.S.C.A. §§ 5103, 5103A (West
2002); and 38 C.F.R. § 3.159 (2009) which
notice includes, among other things, notice
of the reasons for the prior final denial
of the claims.
Following delivery of such notice, and
after allowing the appellant a reasonable
period to respond, the RO should issue a
Supplemental Statement of the Case.
3. The RO should thereafter schedule the
Veteran for a hearing before a Veterans'
Law Judge traveling to the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
Court for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
_________________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the nature
of a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2009).